Immigration and Citizenship

Flores v. Rosen

In Flores v. Rosen, the United States Court of Appeals for the Ninth Circuit held that certain Trump Administration regulations were inconsistent with the Flores Agreement, a settlement agreement governing “the detention, release, and treatment of minors” in federal custody.

Case Summary

In 1997, after over a decade of protracted litigation to address the mistreatment of immigrant children held in detention by the Immigration and Naturalization Service (INS), the federal government entered into a settlement agreement that requires the expeditious release of migrant children from government custody and ensures critical state oversight of federal immigration detention facilities.  This agreement (the Flores Agreement) stated that it would terminate upon the publication of agency regulations implementing the terms of the Agreement.  In August 2019, the Department of Homeland Security (DHS) and the Department of Health and Human Services (HHS) issued regulations that purported to satisfy those requirements and terminate the Agreement.  A class of minors, however, challenged the Regulations in federal district court, arguing that the Regulations did not implement the Flores Agreement and instead circumvented and undermined its key provisions.  The district court agreed and enjoined enforcement of the Regulations, concluding that they “not only do not implement the Flores Agreement, they intentionally subvert it.”  The Department of Justice (DOJ) appealed to the Ninth Circuit, where CAC filed an amici curiae brief on behalf of 132 members of Congress urging the court to affirm the district court’s judgment.

Our brief made two main points.  First, we argued that the challenged Regulations were inconsistent with the plain terms and purpose of the Flores Agreement, which remains a binding contract.  In particular, the Regulations effectively authorized the indefinite detention of migrant children, despite the Agreement’s core mandates that the government “shall expeditiously process” a minor upon apprehension and “shall release a minor from its custody without unnecessary delay.”  The Regulations also substantially altered the licensing requirements for programs that detain unaccompanied children.  Although the Agreement states that children in custody must be placed in a program licensed by the relevant state to care for children, the Regulations eliminated this state oversight and instead allowed DHS to indefinitely detain children in its own facilities and to handpick the entities that inspect those facilities for compliance with INS standards.  In addition, the Regulations did not provide certain other legal protections for minors that the Agreement requires.

Second, we argued that although DOJ suggested that the Homeland Security Act of 2002 and the Trafficking Victims Protection Reauthorization Act of 2008 necessitated these deviations from the Flores Agreement, the Ninth Circuit already held that those laws did not supplant the Flores Agreement.  To the contrary, Congress passed those statutes to complement and strengthen the Agreement’s protections, and thus those laws did not excuse the Regulations’ inconsistencies with the Agreement.

In December 2020, a panel of the Ninth Circuit affirmed in part and reversed in part the judgment of the district court.  Although the court identified some consistencies between the Trump Administration’s Regulations governing the detention of immigrant children and the protections guaranteed by the 1997 Flores Agreement, it agreed with our argument that several aspects of the Regulations were inconsistent with the Flores Agreement.  As a result, the court rejected DOJ’s argument that the Flores Agreement terminated by its own terms simply because the Regulations were published.  Second, the court affirmed the district court’s ruling that changed circumstances, including the passage of recent legislation, did not warrant termination of the Flores Agreement.  Accordingly, the court upheld the injunction prohibiting certain aspects of the Trump Administration’s Regulations from taking effect, and it rejected DOJ’s attempt to terminate the Flores Agreement.

Case Timeline

  • January 28, 2020

    CAC files amici curiae brief

    Ninth Cir. Amici. Curiae Br.
  • March 17, 2020

    The Ninth Circuit has vacated oral arguments originally scheduled for April 23 due to CV-19

  • December 29, 2020

    The Ninth Circuit issues its decision

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